Steinmeir v. County of San Diego

Opinion

1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 SOUTHERN DISTRICT OF CALIFORNIA 11 12 SUZANNE STEINMEIER, Case No.: 18cv1603 JM (WVG)

13 Plaintiff, 14 v. ORDER DENYING PLAINTIFF’S 15 COUNTY OF SAN DIEGO; SAN MOTION TO AMEND THE DIEGO COUNTY SHERIFF’S 16 COMPLAINT DEPARTMENT; SHERIFF WILLIAM 17 GORE; FRANK LEYVA; KENNETH EDWARDS; PETER ALVARADO; 18 BRIAN KEENE; WILLIS WHITED; and 19 DOES 3 through 10, 20 Defendants. 21 22 In this excessive force claim under 42 U.S.C. § 1983, Plaintiff Suzanne Steinmeier 23 (“Plaintiff”) moves to amend her Complaint by naming California Highway Patrol (CHP) 24 Officers Jason Hughes and Ralph Ketcher as Doe Defendants 3 and 4, despite the 25 expiration of the deadline to amend her Complaint in the court’s Scheduling Order. (Doc. 26 No. 35.) She also seeks to amend her sole cause of action currently before the court and 27 add a second count based on police bystander liability and conspiracy. (Doc. No. 38.) For 28 the below reasons, the motion is DENIED. 1 I. BACKGROUND 2 The parties do not dispute that on the evening of April 27, 2015, Plaintiff and her 3 wife, Michelle Rivera (“Rivera”), led officers from the San Diego County Sherriff’s 4 Department and the California Highway Patrol (CHP) on a vehicle chase. A Sheriff’s 5 Department helicopter joined the pursuit. Plaintiff and Rivera ultimately abandoned the 6 vehicle and fled on foot into a dark riverbed. Multiple officers, including two Sheriff’s 7 Deputies and a police dog, pursued the suspects into the riverbed. Police eventually located 8 Plaintiff and Rivera and arrested them. During the arrest, Rivera was bit by the police dog 9 and Plaintiff was struck multiple times by police. Sheriff’s Deputies Frank Leyva (the dog 10 handler) and Kenneth Edwards admit to striking Plaintiff. 11 On April 26, 2016, Rivera, but not Plaintiff, filed an excessive force claim against 12 Deputy Leyva and others in the U.S. District Court for the Central District of California. 13 See Rivera v. Cty. of San Diego, Case No. ED CV 16-795 PSG (KSx), 2017 WL 5643151, 14 at *1 (C.D. Cal. Nov. 14, 2017). The case was based on the same incident, but involved 15 different uses of force, i.e. a police dog bit Rivera and police officers struck Plaintiff. The 16 case went to trial in June 2017 and the jury returned a verdict in favor of the defendants. 17 Id. The verdict was subsequently affirmed. 771 F. App’x 436, 437 (9th Cir. 2019). 18 On March 27, 2017, Plaintiff filed suit in state court against Deputies Leyva and 19 Edwards, as well as Doe Defendants 1 through 10.1 (Doc. Nos. 1 at 2, 1-5 at 4.) The 20 Complaint described Does 1 through 10 as law enforcement officers who accompanied 21 Deputies Leyva and Edwards into the riverbed, (Doc. No. 1-5 at 6-7), and who observed 22 excessive force being used against Plaintiff and failed to intervene, (id. at 15-16). Does 1 23 through 5 were also described as officers who, in addition to Deputies Leyva and Edwards, 24 used force against Plaintiff. (Id. at 9.) At the time of filing her suit, Plaintiff knew that 25 26 1 Plaintiff also sued the County of San Diego, the San Diego County Sheriff’s Department, 27 the Sheriff, and Deputy Peter Alvarado. (Doc. No. 1 at 2, 1-5 at 4.) On December 28, 2018, the court dismissed with leave to amend Plaintiff’s Monell claims, but did not dismiss 28 any of the municipal parties at that point. (Doc. No. 13.) 1 CHP Officers were involved in the vehicle pursuit, but Plaintiff contends she was unaware 2 that CHP Officers used force against her because police reports only revealed that Sheriff’s 3 Deputies used forced. (Doc. No. 35 at 3.) According to Plaintiff, the CHP reports in her 4 possession at the time indicated that the only CHP Officers involved were Brian Keene and 5 Willis Whited. (Id. at 4.) 6 On July 16, 2017, Plaintiff filed her First Amended Complaint. (Doc. No. 1-5 at 7 119-21.) On December 26, 2017, Plaintiff filed her Second Amended Complaint. (Doc. 8 No. 1-6 at 49.) The Second Amended Complaint is the version currently before the court, 9 although it was later amended a third time to name CHP Officers Keene and Whited as 10 Does 1 and 2. (Doc. Nos. 5-2, 5-3.) 11 By June 13, 2018, Plaintiff possessed an emergency room record in which 12 unidentified CHP Officers reportedly told Plaintiff’s emergency room doctor that CHP 13 Officers punched Plaintiff. (Id. at 3-4.) Plaintiff’s counsel used the emergency room 14 record in a deposition of the doctor. (Id. at 4.) Plaintiff was also aware that CHP Officer 15 Keene was at the hospital. (Id.) Plaintiff claims this evidence, when compared to the CHP 16 reports she had in her possession, demonstrated a cover-up. (Id.) Therefore, on June 13, 17 2018, Plaintiff amended the Complaint, which was still in state court, for the third time by 18 naming CHP Officers Keene and Whited as Does 1 and 2. (Doc. Nos. 5-2, 5-3.) 19 On July 16, 2018, Keene and Whited removed the case to federal court. (Doc. No. 20 1.) In August of 2018, Deputies Leyva and Edwards, as well as the County of San Diego, 21 filed motions for judgment on the pleadings, (Doc. Nos. 8, 9), which the court denied in 22 part and granted in part on December 28, 2018, (Doc. No. 13). On March 25, 2019, 23 Magistrate Judge Gallo set an early neutral evaluation conference, case management 24 conference, and status conference for May 8, 2019. (Doc. No. 14.) On May 1, 2019, 25 Plaintiff served her first request for production of documents on CHP Officers Keene and 26 Whited. (Doc. No. 35 at 6.) On May 9, 2019, Judge Gallo issued a scheduling order setting 27 28 1 June 7, 2019 as the last day for Plaintiff to amend her Complaint. (Doc. No. 20.) On June 2 7, 2019, the deadline for Plaintiff to amend her Complaint passed. (Id.) On June 27, 2019, 3 Plaintiff was served with a response to her May 1, 2019 discovery request.3 (Doc. No. 35 4 at 6.) Plaintiff states that she did not “receive” the response until July 2, 2019. (Id.) 5 After receiving the discovery response from CHP Officers Keene and Whited on 6 July 2, 2019, Plaintiff claims she knew the identities of CHP Officers Hughes and Ketcher 7 and understood the significance of their involvement. (Id. at 5.) Plaintiff claims this “new” 8 evidence showed that Hughes and Ketcher were with Deputy Leyva as back-up officers 9 when his dog bit Rivera and Plaintiff was arrested. (Id.) Plaintiff also contends the 10 evidence shows that Hughes and Ketcher were the ones who struck Plaintiff, and if not, 11 they condoned the strikes and are liable as bystanders. (Id.) 12 On August 15, 2019, Plaintiff filed two “notices of pending suit,” directed to Hughes 13 and Ketcher, purporting to inform them that they were Doe Defendants 3 and 4. (Doc. 14 Nos. 26, 27.) On August 16, 2019, Deputies Leyva and Edwards filed a notice of intent to 15 oppose the notices. (Doc. No. 28.) On August 21, 2019, the court interpreted the notices 16 as an attempt to amend the Complaint without first seeking leave to amend and ordered 17 Plaintiff to file any motion to amend the Complaint and/or join a party by September 2, 18 2019. (Doc. No. 33.) On September 2, 2019, Plaintiff filed the instant motion seeking to 19 name Hughes and Ketcher as Does 3 and 4. (Doc. No. 35.) On September 4, 2019, Plaintiff 20 deposed Hughes and Ketcher. (Doc. No. 38 at 2.) Plaintiff also deposed the Sheriff’s 21 22 23 2 Judge Gallo’s Civil Chambers Rule III.C states that dates set in his scheduling orders “will not be modified except for good cause shown” and that under Civil Local Rule 16.1(b) 24 “[c]ounsel are reminded of their duty of diligence and that they must ‘take all steps 25 necessary to bring an action to readiness for trial.’”

26 3 Plaintiff states that she granted CHP Officers Keene and Whited an extension of time to 27 respond to her May 1, 2019 discovery request. (Doc. No. 35 at 6.) Plaintiff does not argue, however, that the extension was responsible for her delay in her seeking to amend the 28 Complaint. 1 Department helicopter pilot and confirmed that Hughes and Ketcher were “probably” the 2 two CHP Officers that were with Deputy Leyva. (Doc. No. 51 at 14-15.) On September 3 6, 2019, fact discovery closed. (Doc. No. 20 at 2.) On September 9, 2019, Plaintiff filed 4 a “supplemental declaration” requesting leave to further amend her Complaint by adding a 5 claim of conspiracy to obstruct justice under section 1983 and changing her current theory 6 of liability. (Doc. No. 38.) On September 23, 2019, CHP Officers Keene and Whited, and 7 Deputies Leyva and Edwards, filed responses in opposition. (Doc. Nos. 45, 47.) On 8 September 30, 2019, Plaintiff filed her reply. (Doc. No. 51.) 9 II. LEGAL STANDARD 10 Granting leave to amend a complaint is within the discretion of the trial court. 11 Swanson v. U.S. Forest Serv., 87 F.3d 339, 343 (9th Cir. 1996). Federal Rule of Civil 12 Procedure 16(b) requires courts to issue scheduling orders limiting the time to amend 13 pleadings and complete discovery. Fed. R. Civ. P. 16(b)(1), (b)(3)(A). Under Rule 14 16(b)(4), “[a] schedule may be modified only for good cause and with the judge’s consent.” 15 Rule 16(b)(4) therefore applies when a plaintiff seeks to amend the complaint after the 16 deadline in the pretrial scheduling order for amending the complaint has passed. Coleman 17 v. Quaker Oats Co., 232 F.3d 1271, 1294 (9th Cir. 2000). As explained by the Ninth 18 Circuit: 19 Unlike Rule 15(a)’s liberal amendment policy which focuses on the bad faith of the party seeking to interpose an amendment and the prejudice to the 20 opposing party, Rule 16(b)’s “good cause” standard primarily considers the 21 diligence of the party seeking the amendment. The district court may modify the pretrial schedule “if it cannot reasonably be met despite the diligence of 22 the party seeking the extension.” Moreover, carelessness is not compatible 23 with a finding of diligence and offers no reason for a grant of relief. Although the existence or degree of prejudice to the party opposing the modification 24 might supply additional reasons to deny a motion, the focus of the inquiry is 25 upon the moving party’s reasons for seeking modification. If that party was not diligent, the inquiry should end. 26 27 Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992) (internal 28 citations omitted). 1 III. DISCUSSION 2 Plaintiff does not show good cause under Rule 16(b)(4) for substantially amending 3 her Complaint at this late stage in the litigation. Prejudice to the Deputies and CHP 4 Officers would result. Also, the application of California’s Doe defendant rule, CAL. CIV. 5 PROC. CODE § 474, does not mandate that Plaintiff be allowed to amend the Complaint 6 despite Federal Rule of Civil Procedure 16(b)(4) and Plaintiff’s lack of diligence. For these 7 reasons, and as discussed further below, Plaintiff’s motion is denied. 8 A. Diligence 9 Plaintiff’s reasons for bringing the instant motion so late do not support a finding of 10 diligence. In her September 2, 2019 motion, Plaintiff states she “just learned,” based on 11 “CHP broadcasts” that were produced on July 2, 2019, that CHP Officers Hughes and 12 Ketcher acted as back-up officers to Deputy Leyva. (Doc. No. 35 at 5.) She claims 13 “[h]ence, there is now substantial evidence that Hughes and/or Ketcher struck or punched 14 plaintiff, or condoned the punching or striking, making them liable under bystander 15 liability.” (Id.) Plaintiff argues she could not have obtained the July 2, 2019 discovery 16 earlier because CHP Officers Keene and Whited were “not sued until December 2018, at 17 which point they removed the case to federal court, thus precluding any discovery until 18 after the parties’ Rule 26(f) conference.” (Id. at 5-6.) 19 Plaintiff’s argument is unpersuasive for several reasons. First, she does not explain 20 why the CHP broadcasts produced on July 2, 2019 provide information that could not have 21 been obtained earlier through diligent investigation. She merely states, in conclusory 22 fashion, that when compared to “San Diego recordings,” the evidence “establishes” that 23 Hughes and Ketcher were with Deputy Leyva as back-up. (Id. at 5.) Plaintiff’s counsel 24 also states in a declaration that, at some point after the Rivera case had ended, he listened 25 to the San Diego Sheriff’s Department helicopter recording “with a fine-toothed comb” 26 and realized the “cryptic reference the helicopter pilot made to two CHP units were not 27 Keene and Whited, but rather Hughes and Ketcher.” (Doc. No. 35 at 13.) Again, without 28 further information, this fact, if true, is not supportive of Plaintiff’s counsel’s diligence. 1 Second, the inference that Hughes and Ketcher struck Plaintiff or condoned striking 2 Plaintiff simply because they were with Deputy Leyva as back-up is not supported by any 3 direct evidence.4 Third, Plaintiff incorrectly states that CHP Officers Keene and Whited 4 were not sued until December 2018, and then they removed the case to federal court. In 5 fact, they were named as Does 1 and 2 on June 13, 2018 when the case was still in state 6 court, (Doc. Nos. 5-2, 5-3.) The case was removed on July 16, 2018. (Doc. No. 1.) Fourth, 7 Plaintiff’s claim she was precluded from obtaining discovery because the case was 8 removed to federal court on July 16, 2018 does not support her diligence in investigating 9 the case prior to removal or after the Rule 26(f) conference. Plaintiff does not even identify 10 when the Rule 26(f) conference was held. Finally, Plaintiff does not describe the steps she 11 took to identify witnesses to her arrest. Although the parties do not state when the 12 helicopter video evidence that is part of the record was disclosed, Plaintiff acknowledges 13 she possessed the “helicopter recording” prior to receiving discovery on July 2, 2019 (and 14 was likely in possession of the video during the Rivera trial, which concluded in mid-2017). 15 The video clearly shows there were at least six officers in the riverbed who could have 16 witnessed at least part of the arrest. (See Doc. No. 34-9 Exhibit F.) Failure to identify all 17 potential eyewitnesses to the arrest early in litigation, despite the alleged reluctance of 18 police to volunteer information, is inconsistent with diligent prosecution of an excessive 19 force case. Accordingly, Plaintiff’s argument that she acted diligently is unpersuasive. 20 Furthermore, the record supports that, prior to June 7, 2019, Plaintiff was in 21 possession of sufficient information and had ample time to conclude that her Complaint 22 should be amended in the manner in which she now requests. First, Plaintiff should have 23 had, and likely did have, possession of the sole piece of evidence that CHP Officers used 24 force against Plaintiff. That piece of evidence – a double hearsay statement contained in 25 Plaintiff’s medical record asserting that CHP Officers, as opposed to or in addition to 26 27 4 Although Plaintiff deposed Hughes and Ketcher on September 4, 2019, (Doc. No. 38 at 28 2), she cites no testimony from those depositions to support her new theory. 1 Sheriff’s Deputies, punched Plaintiff – was likely available to Plaintiff within days after 2 she was taken to the hospital on April 27, 2015. As pointed out by the CHP Officers, 3 Plaintiff signed a request for the release of her medical records on February 3, 2017. (Doc. 4 No. 45 at 19.) Plaintiff possessed the record, or the information contained in the record, at 5 a May 30, 2017 deposition of the emergency room nurse, (id. at 18), and before the Rivera 6 trial in June of 2017, (Doc. No. 47 at 8). 7 Second, Plaintiff had evidence that CHP Officers other than Keene and Whited went 8 into the riverbank in pursuit of Plaintiff and Rivera. Plaintiff admits she was aware, as of 9 March 7, 2017, that CHP Officers were acting as backup for Deputy Leyva when Rivera 10 was bitten. (Doc. No. 35 at 4.) Plaintiff was also aware, as of March 7, 2017, that CHP 11 Officer Keene testified in a deposition that he believed CHP Officers from the CHP’s 12 Oceanside office went into the riverbed, but he and CHP Officer Whited, who were from 13 the CHP San Diego office, did not. (Doc. No. 45 at 11-12.) Plaintiff nonetheless named 14 Keene and Whited as Does 1 and 2, and waited three months to do so. (Id. at 13.) 15 Moreover, as of the June 2, 2017 deposition of CHP Sergeant Fuentes, Plaintiff had a list 16 of four CHP Officers, including Hughes and Ketcher, who were “assigned” to the incident 17 and were likely the ones in the riverbed. (Doc. No. 45 at 15-17.) Plaintiff did not, however, 18 seek to depose any of the four officers until after the June 7, 2019 deadline. (Doc. No. 45 19 at 15-17.) 20 Plaintiff argues her investigation of the case was hampered because “CHP officers 21 have been wrongly denying their involvement and trying to cover it up.” (Doc. No. 35 at 22 4.) In support of this allegation, Plaintiff points to the omission of any reference to 23 Oceanside CHP Officers Hughes and Ketcher in San Diego CHP Officer Keene’s report, 24 which was written as though he were the arresting officer. (Doc. No. 35 at 4.) Certainly, 25 the CHP’s inability, or possible disinclination, to identify the CHP Officers present for 26 Plaintiff’s arrest, and voluntarily share that information with Plaintiff’s counsel early in the 27 litigation, is not something to be commended. It does not excuse, however, Plaintiff’s duty 28 1 of diligence to identify crucial witnesses, as well as the proper defendants, by propounding 2 at least some form of discovery directly to the officers who might have been there.5 3 Finally, Plaintiff’s unorthodox, if not improper, attempt to amend the Complaint 4 does not support her cause. Five weeks after the expiration of the amendment deadline, 5 Plaintiff filed two documents with the court’s CM/ECF system styled as “notice[s] of 6 pending suit.” (Doc. Nos. 26, 27.) The notices were directed to Hughes and Ketcher, who 7 were not parties to the suit, directing them to “please take notice that pursuant to Cabrales 8 v. County of Los Angeles, 864 F.2d 1454, 1462-64 (9th Cir. 1988) you have been sued as 9 Defendant DOE 3 [or DOE 4] in the above entitled action.” (Id.) The court ordered 10 Plaintiff to file any motion to amend the Complaint and/or join a party by September 2, 11 2019. (Doc. No. 33.) Plaintiff initially complied by filing the instant motion on 12 September 2, 2019. (Doc. No. 35.) Plaintiff then violated the court’s order by filing a 13 September 9, 2019 document styled as a “supplemental declaration” by Plaintiff’s counsel 14 requesting leave to make yet another amendment to her Complaint by adding a claim of 15 conspiracy to obstruct justice. (Doc. No. 38.) Thus, Plaintiff was at least five weeks late 16 in even attempting to amend her Complaint, was eight weeks late in filing a motion to 17 amend the Complaint (and may have been even later had the court not specified the 18 deadline for filing the motion), and attempted to amend the Complaint, for a fifth time, 19 20 5 In her reply, Plaintiff cites several additional facts to support her claim of a cover-up that 21 allegedly impeded her investigation. Specifically, she claims: (1) on September 3, 2019, the CHP custodian of records testified that CHP Officer Whited’s body microphone 22 recording was destroyed in violation of CHP policy, (Doc. No. 51 at 6, 14); (2) in 2017, 23 CHP Officer Keene testified that he was close enough to hear Deputy Leyva’s commands, but on September 3, 2019, he testified that he could not hear any commands, (id. at 6); (3) 24 Deputies Leyva and Edwards omitted identifying the CHP Officers who were with them, 25 (id. at 14); (4) CHP Officers Keene and Whited never disclosed that Hughes and Ketcher were with Deputy Leyva, (id.); and (5) no CHP records identify Hughes and Ketcher as 26 being within Deputy Leyva. (Id.) These facts do not, however, show that Plaintiff lacked 27 the information that would have allowed her, through diligent investigation, to long ago reach the conclusion that she now claims serves to justify the untimely amendment of her 28 Complaint. 1 after this court’s deadline to submit the instant motion had already passed. Accordingly, 2 the lack of diligence apparent from the record is sufficient grounds to deny Plaintiff leave 3 to amend her Complaint. Johnson, 975 F.2d at 609 (“If [the moving] party was not diligent, 4 the inquiry should end.”). 5 B. Prejudice 6 The existence and degree of prejudice to the CHP Officers and Deputies resulting 7 from Plaintiff’s proposed amendments serves as an additional reason to deny Plaintiff’s 8 motion. Id. The CHP Officers and Deputies assert, and the court has no reason to 9 disbelieve, that if the Complaint were amended, discovery would need to be re-opened 10 even though it closed on September 6, 2019. (Doc. No. 45 at 22.) Indeed, the changes 11 Plaintiff seeks to make to her Complaint, which has already been amended several times, 12 substantially alter her claim. Not only does she seek to name two CHP Officers as Doe 13 Defendants and add an additional cause of action, she also seeks to significantly change 14 the theory of liability currently before the court. Specifically, she no longer alleges that 15 only the Sherriff’s Deputies used force against her. Instead, she alleges the Deputies either 16 used forced against her, or conspired to stand idly by as CHP Officers Hughes, Ketcher 17 and/or Whited did so, or alternatively, that those CHP Officers conspired to stand by as the 18 Deputies used force. (Doc. No. 38-1 at 8, 9, 11, 18.) She also alleges the police conspired 19 to prevent body-worn microphones from recording evidence, (id. at 4), conspired to destroy 20 recordings, (id. at 17), and the police helicopter pilot intended for Rivera to be bitten by 21 the police dog, (id. at 6). Her new allegation also hinges on a theory of police bystander 22 liability. (Doc. No. 35 at 5.) These dramatic changes to the Complaint support Defendants’ 23 purported need to conduct further discovery if the Complaint were amended. Courts have 24 cited the addition of claims that advance different legal theories that require proof of 25 different facts and the need to re-open discovery in support of finding prejudice. Lockheed 26 Martin Corp. v. Network Sols., Inc., 194 F.3d 980, 986 (9th Cir. 1999); Jackson v. Bank of 27 Hawaii, 902 F.2d 1385, 1387-88 (9th Cir. 1990); see also Moriarty v. Cty. of San Diego, 28 Case No. 17cv1154 LAB (AGS), 2019 WL 4643602, at *4 (S.D. Cal. Sept. 24, 2019) 1 (denying leave to amend under 16(b) where unwarranted delay would prejudice the 2 defendants “generally”). 3 Furthermore, Plaintiff filed her motion to amend four days after the Sheriff’s 4 Deputies filed their motion for summary judgment. (Doc. Nos. 34, 35.) Allowing Plaintiff 5 to amend would likely require the court to afford the Deputies the opportunity to file a 6 second or amended motion for summary judgment, as well as to afford the newly added 7 parties the opportunity to file their own motions. Lockheed, 194 F.3d at 986 (denying a 8 motion to amend by relying, in part, on the fact that plaintiff sought to amend the complaint 9 after a motion for summary judgment was filed). While the trial is not scheduled until June 10 22, 2020, additional discovery and motions would quickly occupy that time. 11 In sum, after years of litigation, including an unsuccessful jury trial result by her 12 wife in 2019 in the Central District of California arising out of the same event, Plaintiff 13 now seeks to convert this action into a vast conspiracy case involving two law enforcement 14 agencies. Being mere months away from trial in this case, Plaintiff’s request to amend the 15 Complaint to add new parties and an overarching conspiracy would derail the action 16 entirely, open the door to the full panoply of discovery and renewed motions practice. In 17 essence, rather than extending the action for a few months, substantially greater time would 18 be needed for the tasks enumerated above. The parties have waited long enough for trial 19 or other resolution. Defendant Sheriff’s Deputies have acknowledged their use of force 20 from the outset of the case and never identified other law enforcement personnel being 21 involved in the use of force of which Plaintiff has complained. Prejudice, in the form of 22 unreasonable delay and attendant unnecessary litigation costs for the defense would result 23 if the motion to amend is granted. Accordingly, prejudice to the Deputies and CHP 24 Officers is an additional reason to deny Plaintiff’s motion.6 25 26 6 For the same or similar reasons, Plaintiff’s motion would likely fail Rule 15(a)’s more 27 liberal amendment standard due to the apparent futility of additional discovery, especially given that Plaintiff has already deposed CHP Officers Hughes and Ketcher, (see Doc. No. 28 38 at 2), as well as the resulting undue delay. 1 C. California’s Doe Defendant Rule 2 Plaintiff argues she must be allowed to name CHP Officers Hughes and Ketcher as 3 Doe Defendants 3 and 4 under California’s Doe defendant rule, CAL. CIV. PROC. CODE § 4 474, and under Cabrales v. Cty. of Los Angeles, 864 F.2d 1454, 1462-64 (9th Cir. 1988), 5 vacated on other grounds, 490 U.S. 1087 (1989), reinstated by 886 F.2d 235 (9th Cir. 6 1989). Plaintiff argues her diligence, or lack thereof, under Rule 16(b)(4) is irrelevant 7 because “[a]ll that matters is that the suit be filed before the statute of limitations runs.” 8 (Doc. No. 35 at 6.) Plaintiff claims she satisfied the applicable California statute of 9 limitations because she filed her initial Complaint on March 27, 2017, i.e. within two years 10 of the April 27, 2015 incident date, and because she sought to amend the Complaint by 11 adding Hughes and Ketcher on August 15, 2019, i.e. within three years of her March 27, 12 2017 Complaint. (Id. at 7, 11.) In their opposition, the Deputies and CHP Officers do not 13 address the issue. 14 California’s Doe defendant rule allows plaintiffs to name Doe defendants within 15 three years from filing the complaint without violating the applicable statute of limitations. 16 CAL. CIV. PROC. CODE § 474; Lindley v. General Electric Co., 780 F.2d 797, 799 (9th Cir. 17 1986). In Cabrales, the Ninth Circuit held, in a section 1983 case, that California’s Doe 18 defendant rule, which has no notice requirement, controlled over Rule 15(c)’s requirement 19 that an amendment that changes a party will not relate back to the complaint filing date 20 unless the party knew or should have known that, but for a mistake concerning the identity 21 of the proper party, the action would have been brought against that party. 864 F.2d at 22 1462-64. The court held, “[t]he California pleading practice allowing new defendants to 23 be named after the original complaint is filed without violating the statute of limitations is 24 . . . . a substantive state policy that is applicable in the federal courts.” Id. at 1464 (citing 25 Guaranty Trust Co. v. York, 326 U.S. 99, 110 (1945)). In reaching its decision, the court 26 relied on a Supreme Court case holding that, in section 1983 cases, “‘the length of the 27 limitations period, and closely related questions of tolling and application, are to be 28 governed by state law.’” Id. at 1463-64 (quoting Wilson v. Garcia, 471 U.S. 261, 269 1 (1985)). Because the California rule tolled the applicable California statute of limitations, 2 the court reasoned that, under Wilson, the California Doe defendant rule overrode Rule 3 15(c)’s notice requirement. Id. at 1464. The court, therefore, allowed the plaintiff to amend 4 her complaint, nearly two years after filing suit, by naming another defendant even though 5 under Rule 15(c) the amendment would not have related back to the filing date and the 6 claim probably would have been barred by the statute of limitations. 864 F.2d at 1462; see 7 also Green Valley Corp. v. Caldo Oil Co., Case No. 5:09cv4028 LHK, 2011 WL 3501712, 8 at *4 (N.D. Cal. Aug. 10, 2011) (citing Cabrales to find that California’s relation-back law 9 applied, despite Rule 15, to state law claims over which the federal court had supplemental 10 jurisdiction). 11 As applied here, Cabrales does not empower Plaintiff to amend her Complaint 12 regardless of Rule 16(b)(4)’s good cause standard or her counsel’s lack of diligence. See 13 Moriarty, 2019 WL 4643602, at *4 (denying, under Rule 16(b)(4), an untimely request in 14 a section 1983 case to name Doe defendants, add new claims, and change theories of 15 liability). Cabrales addressed Rule 15(c)’s notice requirement, not Rule 16(b)(4)’s good 16 cause requirement. Plaintiff cites no comparable case, and the court is aware of none, 17 allowing courts to disregard Rule 16(b)(4). See Viehmeyer v. City of Santa Ana, 67 F. 18 App’x 470, 472 (9th Cir. 2003) (recognizing the conflict between California’s Doe 19 defendant rule and Rule 16(b)’s good cause requirement, but expressly declining to decide 20 which controlled). Furthermore, in Cabrales, the person plaintiff sought to name as a 21 defendant argued that the date he was named would not relate back to the date the complaint 22 was filed because he had no prior notice of the claim as required by Rule 15(c) and the 23 statute of limitations had, therefore, expired. 864 F.2d at 1463. The Defendants here raise 24 no Rule 15(c) notice or statute of limitations issue. Certainly, a potential conflict exists 25 between the application of state statutes of limitations in federal question cases and the 26 application of Federal Rules of Civil Procedure granting courts the authority to set their 27 own deadlines for amending complaints and otherwise control their own dockets. Without 28 ] || authority clearly directing otherwise, however, the court cannot disregard Rule 16(b)(4) 2 Plaintiff’s lack of diligence in favor of California’s Doe defendant rule. 3 IV. CONCLUSION 4 For the forgoing reasons, Plaintiffs Motion to Amend the Complaint is DENIED. 5 IT IS SO ORDERED. 6 || DATED: January 16, 2020 7 ited States District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 14